GPC lawyers call deal vexatious under 400-year-old tort
GLADSTONE Ports Corporation lawyers say the company funding a fishers class action against the ports has most of the control and will see $50million paid out before fishers get a cent.
Dominic O'Sullivan QC, of King and Wood Mallesons, outlined GPC's position on the funding arrangement between Litigation Capital Management and the plaintiffs yesterday during day two of a hearing in the Supreme Court in Rockhampton.
Mr O'Sullivan said their interpretation of the agreement and their calculations based on the agreement information meant $50 million would be paid to the funders and lawyers before fishers got a cent.
"The funder has a vexatious interest," he said.
"It's plainly champertous in our opinion."
He argued the amount of control given to LCM in the agreement, and the $50million calculation which meant LCM had a significant interest in the case, backed GPC's submission that the agreement was champertous and vexatious.
Lachlan Armstrong QC, representing the fishers and associated businesses, had told the court on Thursday that class action would cost $9.5million and any appeal would cost $9.3million
Champerty is a legal restriction - which originated in Britain in the 1600s and has been law in Queensland since the 1800s - that precludes frivolous or vexatious litigation, along with maintenance funded by a third party for a share of the lawsuit win.
Mr O'Sullivan pointed to various sections of the agreement where GPC claims give LCM too much control over the litigation, including sections Mr O'Sullivan claimed gave LCM power to intervene, would have power to have a 'staff member' removed, to veto matters and fisher members could not exit the class action but LCM could eject individual members.
He said the agreement includes lawyers having a duty of care to LCM and a cap on solicitor's fees at $4.8million.
Mr O'Sullivan said the evidence provided in the case so far, from Barry Murphy and Ted Whittingham's statement of facts, had "no particulars" about where the alleged sick fish were caught in the massive area from Shoalwater Bay to Cape Moreton and out to Swains Reef as alleged so far.
He said this put the case in the vexatious category.
The fishers' lawyers and LCM's lawyers have countered GPC allegations, and have requested the court's clarification and declaration that the 400-year-old torts of 'champerty and maintenance' are no longer relevant in today's legal proceedings.
Lachlan Armstrong QC, representing the fishers and associated businesses, said Victoria and New South Wales governments axed the old torts when they adopted their class action regimes after what is known as the Fostif decision in Australia's High Court in 2006.
The court in the Fostif decision found litigation funding was not an abuse of process or contrary to public policy.
Mr Armstrong claimed the Fostif decision says the torts are too old to be used today.
He said the old torts were "too broad" and have "no continued reason for existence" as public policy addresses concerns over contracts.
However, Mr O'Sullivan said the Fostif decision did not abolish the torts and he can point to cases in Queensland that have run since the Fostif decision that have said the tort still exists.
Justice Graeme Crow will hand down his decision on the application before the court at a later date.